Citation Nr: 0335772
Decision Date: 12/18/03 Archive Date: 12/24/03
DOCKET NO. 98-15 300 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Cleveland,
Ohio
THE ISSUES
1. Whether new and material evidence has been received to
reopen a claim of entitlement to service connection for a
testicle injury, to include varicocele of the left testicle.
2. Whether new and material evidence has been received to
reopen a claim of entitlement to service connection for
degenerative disc disease of the cervical spine.
3. Whether new and material evidence has been received to
reopen a claim of entitlement to service connection for
bilateral pes cavus.
4. Whether new and material evidence has been received to
reopen a claim of entitlement to service connection for a
bilateral ankle disability.
5. Entitlement to an increased rating for chronic
lumbosacral strain with degenerative disc disease and
radiculopathy, currently evaluated as 40 percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
James R. Siegel, Counsel
INTRODUCTION
The veteran served on active duty from November 1978 to
November 1979.
Service connection for residuals of an injury to the left
testicle and for bilateral pes cavus was originally denied by
the Regional Office (RO) in a rating decision dated in
November 1980. The former disability was denied on the basis
that the in-service findings were acute and transitory, and
no residuals were present, and the claim for service
connection for pes cavus was denied on the basis that it was
a congenital and developmental abnormality. The veteran was
provided with notice of this decision.
In a rating decision dated in August 1992, the RO, in
pertinent part, concluded that new and material evidence had
not been received to reopen the claims for service connection
for residuals of a left testicle injury or bilateral pes
cavus. In addition, the RO denied the veteran's claim for
service connection for degenerative disc disease of the
cervical spine. The veteran was informed of this decision
and of his right to appeal by a letter dated later in August
1992.
By rating action dated in September 1997, the RO denied the
veteran's claim for service connection for an ankle
disability. He was notified of this determination and of his
right to appeal by a letter dated later that month. A timely
appeal was not received.
Recently, the veteran has sought to reopen his claims for
service connection for residuals of an injury to the
testicle, degenerative disc disease of the cervical spine,
bilateral pes cavus and a bilateral ankle disability. By
rating decision dated in May 1998, the RO held that new and
material evidence had not been received to reopen claims for
service connection for a left testicle condition,
degenerative disc disease of the cervical spine or a
bilateral foot disability. The RO also denied service
connection for an ankle disability. In addition, the RO
denied the veteran's claim for an increased rating for his
service-connected low back disability, then evaluated as 20
percent disabling.
This case was previously before the Board of Veterans'
Appeals (Board) in April 2000, at which time it was remanded
in order to afford the veteran the opportunity to testify at
a hearing before a Veterans Law Judge. However, in a
statement dated in May 2000, the veteran specifically
indicated that he did not want to testify at a Travel Board
hearing.
Based on the receipt of additional evidence, including the
report of a Department of Veterans Affairs (VA) examination
in May 2002, the RO, by rating action dated in April 2003,
increased the evaluation assigned for chronic lumbosacral
strain with degenerative disc disease and radiculopathy to 40
percent, effective March 1998.
When this case was before the Board in April 2000, the issues
included service connection for numbness of the right thigh
and for numbness of the legs. In the supplemental statement
of the case issued in April 2003, the RO indicated that these
matters were being "service-connected" as part and parcel
of the chronic lumbosacral strain with degenerative disc
disease. Accordingly, this decision is limited to the issues
set forth on the cover page.
In the May 1998 rating action on appeal, the RO did not
determine whether the veteran had submitted new and material
evidence with respect to the claim for service connection for
a bilateral ankle disability. Rather, it denied the
veteran's claim on the merits following a de novo review of
the record. The requirement of submitting new and material
evidence to reopen a claim is a material legal issue the
Board is required to address on appeal despite the RO's
September 1997 action. Barnett v. Brown, 83 F.3d 1380, 1383-
1384 (Fed. Cir. 1996). In light of the Board's legal duty to
determine whether the veteran has submitted new and material
evidence to reopen the previously denied claim, the issue
certified by the RO has been rephrased as noted on the title
page.
The issue of entitlement to an increased rating for
lumbosacral strain with degenerative disc disease and
radiculopathy will be addressed in the REMAND following the
ORDER section below.
FINDINGS OF FACT
1. By rating decision dated in August 1992, the RO denied
the request to reopen a claim for service connection for
residuals of an injury to the testicle. The veteran was
notified of this decision, but did not file a timely appeal.
2. The evidence received since the August 1992 RO
determination is cumulative or redundant of information
previously considered, and the additional evidence, by itself
or in connection with previous submissions, is not so
significant that it must be considered in order to fairly
decide the merits of the claim for service connection for
residuals of an injury to the testicle, to include varicocele
of the left testicle.
3. By rating decision dated in August 1992, the RO denied
service connection for degenerative disc disease of the
cervical spine. The veteran was notified of this decision,
but did not file a timely appeal.
4. The evidence received since the August 1992 RO
determination is cumulative or redundant of information
previously considered, and the additional evidence, by itself
or in connection with previous submissions, is not so
significant that it must be considered in order to fairly
decide the merits of the claim for service connection for
degenerative disc disease of the cervical spine.
5. By rating decision dated in August 1992, the RO denied
the request to reopen a claim for service connection for a
bilateral foot disability. The veteran was notified of this
decision, but did not file a timely appeal.
6. The evidence received since the August 1992 RO
determination is cumulative or redundant of information
previously considered, and the additional evidence, by itself
or in connection with previous submissions, is not so
significant that it must be considered in order to fairly
decide the merits of the claim for service connection for a
bilateral foot disability.
7. By rating decision dated in September 1997, the RO denied
service connection for a bilateral ankle disability. The
veteran was notified of this decision, but did not file a
timely appeal.
2. The evidence received since the September 1997 RO
determination is cumulative or redundant of information
previously considered, and the additional evidence, by itself
or in connection with previous submissions, is not so
significant that it must be considered in order to fairly
decide the merits of the claim for service connection for a
bilateral ankle disability.
CONCLUSIONS OF LAW
1. The RO's decision of August 1992, which denied the
request to reopen a claim for service connection for
residuals of an injury to the testicle, to include varicocele
of the left testicle, is final. 38 U.S.C.A. § 7105 (West
2002); 38 C.F.R. §§ 3.104(a), 20.302, 20.1103 (2002).
2. The evidence received since the August 1992 rating
decision is not new and material to reopen the veteran's
claim for service connection for residuals of an injury to
the testicle, to include varicocele of the left testicle. 38
U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (as in
effect prior to August 29, 2001).
3. The RO's decision of August 1992, which denied service
connection for a neck disability, is final. 38 U.S.C.A.
§ 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 20.302, 20.1103
(2002).
4. The evidence received since the August 1992 rating
decision is not new and material to reopen the veteran's
claim for service connection for degenerative disc disease of
the cervical spine. 38 U.S.C.A. §§ 5108, 7105 (West 2002);
38 C.F.R. § 3.156 (as in effect prior to August 29, 2001).
5. The RO's decision of August 1992, which denied the
request to reopen a claim for service connection for a
bilateral foot disability, is final. 38 U.S.C.A. § 7105
(West 2002); 38 C.F.R. §§ 3.104(a), 20.302, 20.1103 (2002).
6. The evidence received since the August 1992 rating
decision is not new and material to reopen the veteran's
claim for service connection for a bilateral foot disability.
38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (as
in effect prior to August 29, 2001).
7. RO's decision of September 1997, which denied service
connection for residuals a bilateral ankle disability, is
final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R.
§§ 3.104(a), 20.302, 20.1103 (2002).
8. The evidence received since the September 1997 rating
decision is not new and material to reopen the veteran's
claim for service connection for a bilateral ankle
disability. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R.
§ 3.156 (as in effect prior to August 29, 2001).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
On November 9, 2000, the President signed into law the
Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No.
106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§
5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West Supp. 2002)).
This new law eliminates the concept of a well-grounded claim,
and redefines the obligations of VA with respect to the
duties to notify and to assist claimants in the development
of their claims. First, the VA has a duty to notify the
appellant and his representative, if represented, of any
information and evidence needed to substantiate and complete
a claim. VCAA, § 3(a), 114 Stat. 2096, 2096-97 (2000). See
38 U.S.C.A. §§ 5102 and 5103 (West. 2002). In this regard,
VA will inform the veteran of which information and evidence,
if any, that he is to provide and which information and
evidence, if any, VA will attempt to obtain on his behalf.
VA will also request that the veteran provide any evidence in
his possession that pertains to the claim. Second, the VA
has a duty to assist the appellant in obtaining evidence
necessary to substantiate the claim. VCAA, § 3(a), 114 Stat.
2096, 2097-98 (2000). See 38 U.S.C.A. § 5103A.
It is unclear, at this time, whether the VCAA applies to the
claims in this current appeal because they were filed before
enactment of VCAA. See Kuzma v. Principi, No. 03-7032 (Fed.
Cir., August 25, 2003). However, the factual scenario in
Kuzma, as well as in the prior Federal Circuit cases of
Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002), and
Bernklau v. Principi, 291 F.3d 795 (Fed. Cir. 2002), cited
therein, was that proceedings were complete before VA when
the VCAA was enacted. Clearly, that is not the case here.
Furthermore, there is contrary legal precedent, see
VAOPGCPREC 7-2003, which holds the VCAA applies retroactively
to claims pending on the date the law was enacted, such as
these claims.
With respect to notice, VA letters to the veteran, to
specifically include as dated in June 2001, informed the
appellant of the evidence necessary to substantiate his
claims, as well as VA development activity. As such, VA's
duty to notify has been met. See Quartuccio v. Principi, 16
Vet. App. 183, 187 (2002).
With regard to the duty to assist, the record contains the
veteran's service medical records, as well as reports of VA
and private post service treatment and examination. The
veteran has been afforded the opportunity for a personal
hearing on appeal. The Board has carefully reviewed the
veteran's statements and concludes that he has not identified
further evidence not already of record. The Board has also
perused the medical records for references to additional
treatment reports not of record, but has found nothing to
suggest that there is any outstanding evidence with respect
to the veteran's claims. Based on the foregoing, the Board
finds that all relevant facts have been properly and
sufficiently developed in this appeal and no further
development is required to comply with the duty to assist the
veteran in developing the facts pertinent to his claims.
Essentially, all available evidence that could substantiate
the claim has been obtained. There is no indication in the
file that there are additional relevant records that have not
yet been obtained.
The Board notes that the VCAA notice letter issued on June 5,
2001 advised the veteran to send additional information and
evidence within 60 days. In a decision promulgated on
September 22, 2003, Paralyzed Veterans of America v.
Secretary of Veterans Affairs, 345 F. 3rd 1334 (Fed Cir.
2003), the United States Court of Appeals for the Federal
Circuit invalidated the 30-day response period contained in
38 C.F.R. § 3.159(b)(1) as inconsistent with 38 U.S.C.§
5103(b)(1). The Court made a conclusion similar to the one
reached in Disabled Am. Veterans v. Secretary of Veterans
Affairs, 327 F.3d 1339, 1348 (Fed. Cir. 2003) (reviewing a
related Board regulation, 38 C.F.R. § 19.9). The court found
that the 30-day period provided in § 3.159(b)(1) to respond
to a VCAA duty to notify is misleading and detrimental to
claimants whose claims are prematurely denied short of the
statutory one-year period provided for response. A full year
is allowed to respond to a VCAA notice. Nevertheless, the
concerns expressed in Paralyzed Veterans of America v.
Secretary of Veterans Affairs, 345 F. 3rd 1334 (Fed Cir.
2003) do not preclude the Board's consideration of the issues
on appeal at this time. In this regard, it is noted that, in
a letter issued on April 8, 2003, the VA afforded the veteran
an additional opportunity to submit information and evidence
relevant to the issues on appeal. No response was received.
A remand in this regard is inappropriate where there is no
possibility of any benefit flowing to the veteran. Soyini v.
Derwinski, 1 Vet. App. 540 (1991).
Factual background
A. Residuals of an injury to the testicle, to include a
varicocele of the left testicle
The old evidence
The service medical records disclose that the veteran was
seen on a number of occasions for complaints involving the
left testicle. In May 1979, it was reported that the veteran
had fallen on snow and ice in basic training, but that he did
not seek medical aid at that time. About one week earlier,
he had been told he had an infection and was given
medication, but the pain did not stop. An examination showed
that the area of the left testicle sac was slightly red. He
was referred to the surgical clinic later that day.
Following an examination, the impression was epididymitis.
Bed rest and medication were prescribed. When he was seen in
June 1979, it was indicated that the veteran had protracted
epididymal pain on the left, and that there had been no
response to routine care. An examination revealed a mild
varicocele on the left and tenderness in the lower pole of
the left testis. He was seen in the urology clinic later in
June and it was noted that the pain persisted. An
intravenous pyelogram was reportedly normal. The pertinent
impression was epididymalgia of unknown etiology. In July
1979, a voiding cystourethrogram and an excretory urogram
were negative.
The veteran was again seen in the urology clinic in August
1979. It was reported that a genitourinary evaluation had
been normal and that medication did not provide relief of his
symptoms. An examination showed a small left varicocele with
a normal tender epididymis. The impression was left
orchalgia of unknown cause. A scrotal support was
recommended. He continued to be treated for left testicular
pain in October and November 1979. It was noted in November
1979 that he had been kicked in the groin that day. He
noticed swelling and discoloration.
A VA general medical examination was conducted in October
1980. The veteran reported testicular swelling and pain
since January 1979 when he fell on ice. He asserted that the
pain was made worse by bumping, jarring, lifting bending and
sexual intercourse. Following an examination, the pertinent
diagnosis was history of left testicle injury, with the
examination perfectly normal.
VA outpatient treatment records dated in 1991 and 1992
reflect that the veteran was seen in May 1991 for chronic
left epididymitis and left varicocele.
Following a VA general medical examination, the pertinent
diagnosis was varicocele of the left, with testicular
atrophy.
The August 1992 rating decision
By rating action dated in August 1992, the RO concluded that
the additional evidence was not new and material, and the
claim for service connection for a left testicle condition
was not reopened. The RO noted that the evidence was
cumulative in nature and did not establish that the condition
was incurred in service.
The additional evidence
VA outpatient treatment records dated from 1998 to 2002 show
that the veteran was seen for various complaints, including
testicular pain. A scrotal ultrasound in February 2001
revealed a mild varicocele of the spermatic cord in the left
scrotum.
On VA examination in May 2002, it was reported that the
veteran wore an athletic supporter due to scrotal pain. An
examination showed fullness and tenderness of the left
testicle. The remainder of the genitourinary examination was
normal. No pertinent diagnosis was made.
B. Degenerative disc disease of the cervical spine
The old evidence
The service medical records are negative for complaints or
findings concerning the cervical spine. On examination in
June 1979, a clinical evaluation of the spine was normal.
VA outpatient treatment records disclose that the veteran was
seen in August 1991 and complained of right-sided neck pain
radiating to the right arm with tingling and numbness of the
right upper extremity. He related that these complaints had
been present since a motor vehicle accident about ten years
earlier. He claimed that he was told that he had a central
herniated intervertebral disc at C4-5. An electromyogram
showed no definite evidence of cervical radiculopathy or
peripheral neuropathy. It was noted in April 1992 that the
veteran had a herniated nucleus pulposus C5-7.
The veteran was afforded a general medical examination by the
VA in May 1992. He stated that a herniated disc at C4-5 was
diagnosed by myelogram in 1982. Following an examination,
the diagnosis was reported history of central herniated
nucleus pulposus of C4-5.
The August 1992 RO decision
By rating action dated in August 1992, the RO denied the
veteran's claim for service connection for a neck disability.
It was noted that there was no evidence of a neck injury in
service, and that the earliest evidence of a neck condition
by history was in 1982.
The additional evidence
On VA examination of the spine in April 1998, the veteran
related that he had a severe accident in 1960 and injured his
back and neck. He stated that when he was examined in 1982,
it was noted that he had something wrong with his cervical
spine. There were no findings or diagnoses pertaining to the
cervical spine.
VA outpatient treatment records dated from 1998 to 2001 have
been associated with the claims folder. The veteran was seen
in April 2001 and related that he had been in an accident
during service that led to his neck problems.
The veteran was examined by the VA in May 2002. He described
an axial skeletal injury when he was four years old and his
hair became caught in an engine fan. He stated that he had
experienced neck pain since that time. Following an
examination, the pertinent impression was extensive multi-
level degenerative arthritis involving the cervical spine.
C. Pes cavus
The old evidence
The service medical records show that the veteran was seen in
January "1978" for pes cavus with hammertoes bilaterally.
He was seen on a number of occasions for complaints of foot
pain. In March 1979, the veteran complained of bilateral
foot pain of three days duration following a 25-mile march.
He again complained of foot pain about six weeks later. He
related that he had seen a private podiatrist who told him
that he had high arches, and that surgical intervention was
needed. He indicated that the pain began when he entered
service. Later in May 1979, the veteran was seen in the
podiatry clinic for his foot complaints. Following an
examination, the assessment was cavus type foot, moderate.
The veteran was seen in the orthopedic clinic in August 1979
for painful feet. There was no fixed deformity of the toes.
The impressions were metatarsalgia with foot sprain and mild
pes cavus. When seen in the podiatry clinic later that
month, it was noted that the veteran had bilateral mild pes
cavus. The examiner noted that it appeared to be a
physiological extensor contraction of the digits. It was
noted the next day that X-ray studies revealed a mild to
moderate cavus type foot structure with hyperextended digits
of both feet. It was stated that the symptom complex
complaint appeared to be exaggerated for the physical
findings. An element of physiological overlay was also
noted.
On VA general medical examination in October 1980, the
veteran reported that both feet hurt, but there was no
history of an injury. It was reported that he had a definite
bilateral pes cavus. On examination, there was no pronation
or bulging of the medial border. There was no valgus of the
heel. There was elevation of the longitudinal arch, but no
depression. There was slight clawing of the toes. No hallux
valgus or rigidus was noted. The pertinent diagnosis was
history of foot pain with pes cavus and calluses. The
examiner indicated that pes cavus was congenital and that
there was no excessive functional loss on the examination.
In a statement dated in November 1987, a private podiatrist
related that the veteran had been treated at that office
since June 1982 and that his chief complaint had been
bilateral foot and ankle pain. The pain was reportedly
present since he had been in service. An examination
disclosed a strained foot with plantar displaced metatarsal
heads, bilaterally.
VA outpatient treatment records show that the veteran was
seen in May 1991 and pes cavus was noted. It was concluded
in August 1991 that the veteran's foot pain was due to
biomechanical abnormalities.
A VA general medical examination was conducted in May 1992.
An examination revealed that the feet were within normal
limits.
The RO's August 1992 decision
In its August 1992 determination, the RO concluded the
additional evidence was cumulative and did not constitute new
and material evidence demonstrating that a bilateral foot
disability was incurred in or aggravated by service.
The additional evidence
The veteran was afforded a VA examination in April 1998. He
stated that his feet hurt most of the time and he alleged
that it was due to marching while in service. An examination
revealed a slight "H. vagers" deformity of both toes.
Another VA examination was conducted in May 2002. An
examination of the feet showed mild callosities on the
plantar surface of both feet. There was no breakdown. There
were bilateral hallux valgus abnormalities, but these areas
were nontender and there was no abnormality of the intrinsic
musculature of the feet. The pertinent impression was that
there was no diagnosis for purposes of disability
determination involving the feet.
D. A bilateral ankle disability
Factual background
The service medical records are negative for complaints or
findings of any ankle disability.
The veteran was examined by the VA in October 1980. An
examination showed that both ankles measured ten inches in
circumference. There was no edema. No pertinent diagnosis
was made.
A private podiatrist related in a November 1987 statement
that the veteran had been seen since June 1982. At that
time, his complaints included bilateral ankle pain. There
were no findings pertaining to the ankles.
On VA general medical examination in May 1992, it was noted
that the veteran had full range of motion of the ankles. No
bony abnormalities were noted. There was no diagnosis
referable to the ankles.
The RO decision
In a rating decision dated in September 1997, the RO denied
the veteran's claim for service connection for a bilateral
ankle disability on the basis that no disability was present.
The additional evidence
Private medical records disclose that the veteran was seen in
October 2000 for an evaluation of ankle pain.
VA outpatient treatment records show that the veteran was
seen in April 2001 and complained of ankle problems.
The veteran was afforded a VA examination in May 2002. He
claimed that he went on a 25-mile march and that caused pain
in his ankles. He reported ankle swelling after activity.
An examination disclosed normal range of motion of the
ankles. There was no ankle edema. There was no crepitance
with active or passive range of motion of the ankles.
Ligamentous insertions appeared to be intact. Calf
musculature was normal. X-ray studies of the ankles revealed
no joint effusion or pathological calcifications. The soft
tissues appeared to be normal. There were mild hypertrophic
changes of the right medial malleolus suggesting a previous
deltoid injury. The pertinent impression was that there was
no diagnosis for purposes of disability determination
involving the ankles.
Analysis
Pursuant to 38 U.S.C.A. § 7105(c), a final decision by the RO
may not thereafter be reopened and allowed. The exception to
this rule is found at 38 U.S.C.A. § 5108, which provides that
"[i]f new and material evidence is presented or secured with
respect to a claim, which has been disallowed, the [VA] shall
reopen the claim and review the former disposition of the
claim." Therefore, once an RO decision becomes final under
section 7105(c), absent the submission of new and material
evidence, the claim cannot be reopened or adjudicated by the
VA. 38 U.S.C.A. §§ 5108, 7105(c); Barnett v. Brown, 83 F.3d
1380, 1383 (Fed. Cir. 1996).
New and material evidence is defined as evidence not
previously submitted to agency decisionmakers which bears
directly and substantially upon the specific matter under
consideration; which is neither cumulative nor redundant; and
which, by itself or in connection with evidence previously
assembled, is so significant that it must be considered in
order to fairly decide the merits of the claim. 38 C.F.R.
§ 3.156(a) (2001). (The provisions of 38 C.F.R. § 3.156
which define new and material evidence were changed in 2001,
but only as to claims filed on or after August 29, 2001. 66
Fed. Reg. 45630 (Aug. 29, 2001) (codified as amended at
38 C.F.R. § 3.156(a)).) Under the standard in effect in the
veteran's case, newly received evidence may be sufficient to
reopen a claim if it contributes to a more complete picture
of the circumstances surrounding the origin of a veteran's
injury or disability, even where it would not be enough to
convince the Board to grant a claim. Hodge v. West,
155 F.3d 1356, 1363 (Fed. Cir. 1998).
The VA is required to review for its newness and materiality
only the evidence submitted by a claimant since the last
final disallowance of a claim on any basis in order to
determine whether a claim should be reopened and re-
adjudicated on the merits. See Evans v. Brown, 9 Vet. App.
273 (1996). In the present appeal, the veteran was informed
of the last final disallowance of the claims for service
connection for residuals of a testicle injury, a bilateral
foot disability and for a neck disability in August 1992. He
was informed of the last final disallowance of the claim for
service connection for a bilateral ankle disability in
September 1997. Therefore, the Board must review, in light
of the applicable law, regulations, and the United States
Court of Appeals for Veterans Claims (Court) cases regarding
finality, the additional evidence submitted since those
determinations. The prior evidence of record is important in
determining newness and materiality for the purposes of
deciding whether to reopen a claim. Id.
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by active
service. 38 U.S.C.A. § 1131.
With chronic disease shown as such in service (or within the
presumptive period under § 3.307) so as to permit a finding
of service connection, subsequent manifestations of the same
chronic disease at any later date, however remote, are
service connected, unless clearly attributable to
intercurrent causes. This rule does not mean that any
manifestations of joint pain, any abnormality of heart action
or heart sounds, any urinary findings of casts, or any cough,
in service will permit service connection of arthritis,
disease of the heart, nephritis, or pulmonary disease, first
shown as a clear-cut clinical entity, at some later date.
For the showing of chronic disease in service there is
required a combination of manifestations sufficient to
identify the disease entity, and sufficient observation to
establish chronicity at the time, as distinguished from
merely isolated findings or a diagnosis including the word
"Chronic." When the disease identity is established
(leprosy, tuberculosis, multiple sclerosis, etc.), there is
no requirement of evidentiary showing of continuity.
Continuity of symptomatology is required only where the
condition noted during service (or in the presumptive period)
is not, in fact, shown to be chronic or where the diagnosis
of chronicity may be legitimately questioned. When the fact
of chronicity in service is not adequately supported, then a
showing of continuity after discharge is required to support
the claim. 38 C.F.R. § 3.303(b).
Where a veteran served 90 days or more during a period of war
or during peacetime service after December 31, 1946, and
arthritis becomes manifest to a degree of 10 percent or more
within one year from date of termination of such service,
such disease shall be presumed to have been incurred in or
aggravated by service, even though there is no evidence of
such disease during the period of service. This presumption
is rebuttable by affirmative evidence to the contrary. 38
U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307,
3.309.
The additional evidence received since the most recent
decision that denied the claims for service connection for
residuals of an injury to the testicle, degenerative disc
disease of the cervical spine, pes cavus and a bilateral
ankle disability consists of reports of medical treatment
many years after service.
As such, the Board finds that the additional evidence,
considered in conjunction with the record as a whole, is
merely cumulative and does not relate to the basis for the
prior final denials. The veteran's statements to the effect
that he has residuals of an injury to the testicle, a
cervical spine disability, pes cavus or a bilateral ankle
disability that are related to service are essentially
similar to his previous allegations. These statements,
standing alone, are insufficient to warrant reopening his
claims. Since the veteran is not a medical expert, he is not
competent to express an authoritative opinion regarding
either his medical condition or any questions regarding
medical causation. See Espiritu v. Derwinski, 2 Vet. App.
492 (1992). There is no competent medical evidence
demonstrating that the veteran has residuals of an injury to
the testicle, to include varicocele, degenerative disc
disease of the cervical spine, pes cavus or a bilateral ankle
disability that is related to any incident in service. The
evidence in this case does not support such a conclusion.
There is a complete lack of medical evidence indicating that
the veteran currently has any of the claimed disabilities
that is related to his military service. Where, as here, the
determinative issue is one of medical diagnosis or causation,
competent medical evidence is required. Lay assertions are
insufficient to reopen a claim under 38 U.S.C. § 5108. Moray
v. Brown, 5 Vet. App. 211, 214 (1993).
In summary, the Board finds that the evidence submitted since
the RO's determinations of August 1992 and September 1997,
when viewed in conjunction with all the other evidence of
record, is merely cumulative and redundant, and has no
significant effect upon the facts previously considered. As
such, it is not new and material as contemplated by 38 C.F.R.
§ 3.156(a), and provides no basis to reopen the veteran's
claims for service connection for residuals of an injury to
the testicle, to include varicocele of the left testicle,
degenerative disc disease of the cervical spine, pes cavus or
a bilateral ankle disability.
ORDER
Since new and material evidence has not been submitted to
reopen a claim of entitlement to service connection for
residuals of an injury to the testicle, to include varicocele
of the left testicle, the appeal is denied.
Since new and material evidence has not been submitted to
reopen a claim of entitlement to service connection for
degenerative disc disease of the cervical spine, the appeal
is denied.
Since new and material evidence has not been submitted to
reopen a claim of entitlement to service connection for pes
cavus, the appeal is denied.
Since new and material evidence has not been submitted to
reopen a claim of entitlement to service connection for a
bilateral ankle disability, the appeal is denied.
(CONTINUED ON NEXT PAGE)
REMAND
The veteran also asserts that a higher rating is warranted
for his service-connected low back disability.
Significantly, however, there has been a change in the rating
criteria applicable to the veteran's service-connected low
back disorder. The VA has issued revised regulations
concerning the sections of the rating schedule that deal with
intervertebral disc syndrome. 67 Fed. Reg. 54345-54349
(August 22, 2002).
The Board notes that this change in the regulations occurred
while the case was still pending at the RO, and the
supplemental statement of the case issued in April 2003 did
not set forth the complete revision in the Diagnostic Code.
In addition, the Board observes that new regulations
pertaining to the evaluation of disabilities of the spine
became effective on September 26, 2003, and the veteran has
not been apprised of this change.
Under the circumstances of this case, the Board finds that
additional development of the record is required.
Accordingly, the case is REMANDED to the RO for action as
follows:
The RO should consider the veteran's
claim for an increased rating for his
lumbar spine disability pursuant to all
rating criteria in effect during the
course of his appeal. Thereafter, if the
determination remains adverse, the RO
should furnish the veteran a supplemental
statement of the case that includes the
pertinent Diagnostic Codes that became
effective both before and after September
26, 2003. The veteran should be afforded
the appropriate period of time in which
to respond.
The appellant has the right to submit additional evidence and
argument on the matters the Board has remanded to the RO.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
______________________________________________
U. R. POWELL
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs
YOUR RIGHTS TO APPEAL OUR DECISION
The attached decision by the Board of Veterans' Appeals (BVA or Board) is
the final decision for all issues addressed in the "Order" section of the
decision. The Board may also choose to remand an issue or issues to the
local VA office for additional development. If the Board did this in your
case, then a "Remand" section follows the "Order." However, you cannot
appeal an issue remanded to the local VA office because a remand is not a
final decision. The advice below on how to appeal a claim applies only to
issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not need to do
anything. We will return your file to your local VA office to implement
the BVA's decision. However, if you are not satisfied with the Board's
decision on any or all of the issues allowed, denied, or dismissed, you
have the following options, which are listed in no particular order of
importance:
? Appeal to the United States Court of Appeals for Veterans Claims
(Court)
? File with the Board a motion for reconsideration of this decision
? File with the Board a motion to vacate this decision
? File with the Board a motion for revision of this decision based on
clear and unmistakable error.
Although it would not affect this BVA decision, you may choose to also:
? Reopen your claim at the local VA office by submitting new and
material evidence.
There is no time limit for filing a motion for reconsideration, a motion to
vacate, or a motion for revision based on clear and unmistakable error with
the Board, or a claim to reopen at the local VA office. None of these
things is mutually exclusive - you can do all five things at the same time
if you wish. However, if you file a Notice of Appeal with the Court and a
motion with the Board at the same time, this may delay your case because of
jurisdictional conflicts. If you file a Notice of Appeal with the Court
before you file a motion with the BVA, the BVA will not be able to consider
your motion without the Court's permission.
How long do I have to start my appeal to the Court? You have 120 days from
the date this decision was mailed to you (as shown on the first page of
this decision) to file a Notice of Appeal with the United States Court of
Appeals for Veterans Claims. If you also want to file a motion for
reconsideration or a motion to vacate, you will still have time to appeal
to the Court. As long as you file your motion(s) with the Board within 120
days of the date this decision was mailed to you, you will then have
another 120 days from the date the BVA decides the motion for
reconsideration or the motion to vacate to appeal to the Court. You should
know that even if you have a representative, as discussed below, it is your
responsibility to make sure that your appeal to Court is filed on time.
How do I appeal to the United States Court of Appeals for Veterans Claims?
Send your Notice of Appeal to the Court at:
Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950
You can get information about the Notice of Appeal, the procedure for
filing a Notice of Appeal, the filing fee (or a motion to waive the filing
fee if payment would cause financial hardship), and other matters covered
by the Court's rules directly from the Court. You can also get this
information from the Court's web site on the Internet at
www.vetapp.uscourts.gov, and you can download forms directly from that
website. The Court's facsimile number is (202) 501-5848.
To ensure full protection of your right of appeal to the Court, you must
file your Notice of Appeal with the Court, not with the Board, or any other
VA office.
How do I file a motion for reconsideration? You can file a motion asking
the BVA to reconsider any part of this decision by writing a letter to the
BVA stating why you believe that the BVA committed an obvious error of fact
or law in this decision, or stating that new and material military service
records have been discovered that apply to your appeal. If the BVA has
decided more than one issue, be sure to tell us which issue(s) you want
reconsidered. Send your letter to:
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
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Remember, the Board places no time limit on filing a motion for
reconsideration, and you can do this at any time. However, if you also plan
to appeal this decision to the Court, you must file your motion within 120
days from the date of this decision.
How do I file a motion to vacate? You can file a motion asking the BVA to
vacate any part of this decision by writing a letter to the BVA stating why
you believe you were denied due process of law during your appeal. For
example, you were denied your right to representation through action or
inaction by VA personnel, you were not provided a Statement of the Case or
Supplemental Statement of the Case, or you did not get a personal hearing
that you requested. You can also file a motion to vacate any part of this
decision on the basis that the Board allowed benefits based on false or
fraudulent evidence. Send this motion to the address above for the
Director, Management and Administration, at the Board. Remember, the Board
places no time limit on filing a motion to vacate, and you can do this at
any time. However, if you also plan to appeal this decision to the Court,
you must file your motion within 120 days from the date of this decision.
How do I file a motion to revise the Board's decision on the basis of clear
and unmistakable error? You can file a motion asking that the Board revise
this decision if you believe that the decision is based on "clear and
unmistakable error" (CUE). Send this motion to the address above for the
Director, Management and Administration, at the Board. You should be
careful when preparing such a motion because it must meet specific
requirements, and the Board will not review a final decision on this basis
more than once. You should carefully review the Board's Rules of Practice
on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified
representative before filing such a motion. See discussion on
representation below. Remember, the Board places no time limit on filing a
CUE review motion, and you can do this at any time.
How do I reopen my claim? You can ask your local VA office to reopen your
claim by simply sending them a statement indicating that you want to reopen
your claim. However, to be successful in reopening your claim, you must
submit new and material evidence to that office. See 38 C.F.R. 3.156(a).
Can someone represent me in my appeal? Yes. You can always represent
yourself in any claim before VA, including the BVA, but you can also
appoint someone to represent you. An accredited representative of a
recognized service organization may represent you free of charge. VA
approves these organizations to help veterans, service members, and
dependents prepare their claims and present them to VA. An accredited
representative works for the service organization and knows how to prepare
and present claims. You can find a listing of these organizations on the
Internet at: www.va.gov/vso. You can also choose to be represented by a
private attorney or by an "agent." (An agent is a person who is not a
lawyer, but is specially accredited by VA.)
If you want someone to represent you before the Court, rather than before
VA, then you can get information on how to do so by writing directly to the
Court. Upon request, the Court will provide you with a state-by-state
listing of persons admitted to practice before the Court who have indicated
their availability to represent appellants. This information is also
provided on the Court's website at www.vetapp.uscourts.gov.
Do I have to pay an attorney or agent to represent me? Except for a claim
involving a home or small business VA loan under Chapter 37 of title 38,
United States Code, attorneys or agents cannot charge you a fee or accept
payment for services they provide before the date BVA makes a final
decision on your appeal. If you hire an attorney or accredited agent within
1 year of a final BVA decision, then the attorney or agent is allowed to
charge you a fee for representing you before VA in most situations. An
attorney can also charge you for representing you before the Court. VA
cannot pay fees of attorneys or agents.
Fee for VA home and small business loan cases: An attorney or agent may
charge you a reasonable fee for services involving a VA home loan or small
business loan. For more information, read section 5904, title 38, United
States Code.
In all cases, a copy of any fee agreement between you and an attorney or
accredited agent must be sent to:
Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
The Board may decide, on its own, to review a fee agreement for
reasonableness, or you or your attorney or agent can file a motion asking
the Board to do so. Send such a motion to the address above for the Office
of the Senior Deputy Vice Chairman at the Board.
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